You have a number of options for formalising parenting arrangements for your children. There is no right or wrong option, only the option that best matches your needs:-
1. Nothing in writing
- I find that parents who have low conflict and who can communicate together effectively often do not need to have anything in writing.
- This option usually works for parents who are able to talk with each other and resolve their day-to-day problems cooperatively.
- If I separated, I hope that I would be able to achieve this level of co-parenting and wouldn’t need anything set out in writing.
2. Parenting Plan
- A Parenting Plan is a written document that is signed by both parents.
- It usually describes where the children will live, how they will spend time and communicate with each parent on holidays and special days, where the children will go to school, and details how decisions about the children will be made and how information about the children will be shared.
- I find that this option works well for parents who are experiencing low/some conflict and wish to have something in writing to give some certainty.
- A Parenting Plan is not legally binding. Either parent can choose not to follow the Parenting Plan and the other parent cannot enforce it.
- I would generally not recommend this option if you are concerned that your ex-partner would stop following the Parenting Plan.
3. Consent Orders
- Consent Orders are made by a Registrar of the Family Court ‘on the papers’, meaning that you don’t have to go to court in person.
- I find that this option is helpful for parents who are experiencing moderate conflict and who need the certainty of having legally binding and enforceable arrangements.
- You will need to complete an Application for Consent Orders, which details both parent’s information as well as the children’s information.
- You will also need to complete Minutes of Consent, which contain the formal parenting orders you are asking the court to make.
- Neither person needs to have a lawyer, but it is typical for at least one person to have a lawyer as the Minutes of Consent can be difficult for a non-lawyer to write correctly.
- The greater the level of conflict between the parents, the more specific the Minutes of Consent will need to be, to reduce the chance of a future dispute about the children’s arrangements.
- Provided the Registrar is satisfied that the documents are correct and that the necessary matters have been included, the Consent Orders should be approved.
- If your ex-partner were to stop following the Consent Orders, you could take contravention action.
4. Initiating Application in the Federal Circuit Court
- You are essentially asking a judge to decide your case, based on the law.
- If I was separated, this would be my worst nightmare – no-one wants a third party telling them how and when they will see their kids.
- This option is usually seen where there is high conflict between the parents, where parents are simply unable to agree, or where there is an urgent need for court intervention.
- This can be a lengthy and costly process:
- It can take upwards of 2 years from start to finish.
- There are multiple court dates from the first mention through to further interlocutory events leading to a final hearing.
- It is not uncommon for each person to spend tens of thousands of dollars, if not hundreds of thousands of dollars, in legal costs.
- Because of the high costs involved (not only financially, but emotionally), I usually recommend this only as a last resort when there is no other feasible choice.
Justine Dean – Samford Family Law